Place of wrong rule

New Mexico courts adopted the “place of the wrong rule” many years ago.

Under that rule, the rights of parties in a lawsuit are governed by the law of the place where the wrong occurred.

Kimberly Montano was a resident of New Mexico when she traveled to Lubbock, Texas for bariatric surgery. Dr. Eldo Frezza was the only doctor that Montano’s insurer would provide coverage for. He worked for the Texas Tech University Health Sciences Center, a government unit of the state of Texas.

For six years following the surgery, Montano suffered complications from the surgery and traveled from New Mexico to Texas for follow-up treatment by Dr. Frezza. Another doctor later discovered that Montano suffered from gastrointestinal bleeding caused by an eroding permanent suture.

Montano sued Frezza in New Mexico state district court alleging medical malpractice. In his motion to dismiss, Frezza argued that because he was a Texas state employee, he was immune from the New Mexico lawsuit under the Texas Tort Claims Act. The district court denied that motion, and the New Mexico Court of Appeals upheld that decision.

If the court followed New Mexico’s “place of the wrong” rule in this case, Texas law would apply and Frezza would be immune under the Texas Tort Claim Act.

However, the district court determined that Montano’s injuries manifested themselves in New Mexico, so New Mexico law applies to Frezza. The Court of Appeals upheld the district court and stated that the courts can set aside the “place of the wrong” rule if a policy consideration outweighs it.

In setting aside the “place of the wrong” rule in this case, the New Mexico Court of Appeals defended one of the greatest privileges of being an American - the right to recover from injury in our courts. Unfortunately, the consequences to the rest of us who travel to Texas for medical care will be devastating when our Texas doctors decide to stop treating New Mexico patients.

The New Mexico Supreme Court has agreed to review the Court of Appeals decision. Hopefully the highest court in the state will decide that the policy of access to out-of-state medical care for thousands of New Mexico outweighs the policy of allowing one plaintiff access to New Mexico courts to sue an out of state doctor.